Jackson’s breast bearing leads to FCC power grab

June 21, 2004

Editorial

Whether it was an innocent wardrobe malfunction or a preplanned stunt, the infamous baring of Janet Jackson’s breast at the Super Bowl in January must make members of the Federal Communications Commission quietly give thanks from time to time.
The incident has given the agency virtually free rein to impose the kind of censorship on broadcasting that it could only dream of in years past.
In the wake of that incident the FCC has stepped up its campaign against “shock jock” Howard Stern and other purveyors of adolescent sex jokes and double entendres on the airwaves.
First, the FCC proposed a $495,000 fine on the nation’s largest radio station chain, Clear Channel. The media company — perhaps chastened by an earlier $755,000 fine for a local show improbably named “Bubba the Love Sponge” — dropped Howard Stern’s show, after earlier suspending it.
Finally, last week, Clear Channel consolidated the Howard Stern complaint with dozens of other open investigations and settled for a fine of $1.75 million, the largest ever imposed on a radio network.
Infinity Broadcasting, which carries Stern’s show on 30 stations, has not dropped him. USA Today speculates the FCC will go after Infinity’s corporate parent, Viacom, but Viacom President Les Moonves says he’ll back Stern and fight the feds.
Meanwhile, Congress is working on a new Broadcast Decency Enforcement Act to boost the fine for each “indecent” statement to $500,000 from the current $27,500. House Energy and Commerce Committee Chairman Joe Barton, a Texas Republican, recently told the National Association of Broadcasters convention the cable industry probably will be regulated under federal indecency rules in the “foreseeable future.”
All this constitutes an opportunistic power grab by the FCC, whose original charter is questionable. The First Amendment to the U.S. Constitution grants virtually absolute freedom of speech — as in “Congress shall make no law” — to oversee the press. Press outlets like this newspaper regulate themselves, taking their subscribers’ tastes and needs into account. While the results can sometimes be questioned, that system works reasonably well.
When radio became technologically feasible, however, instead of viewing it logically as the press with new technology, Congress decided it needed federal regulation — at first ostensibly to allocate space on the dial but later for content as well. That federal regulation was later extended to television, and the airwaves were defined as “publicly owned.”
Some of these developments would be amusing if they didn’t carry such a strong whiff of desire to censor. Obscenity standards, always difficult to define, are supposed to reflect “community standards.” But when the FCC complaints were publicized, Stern’s ratings in New York, which had been sagging, actually increased. That suggests that community standards in the real world, for better or worse, are notably different from what the FCC would prefer.
In a country determined to build on American traditions of liberty rather than undermining them, the FCC, having lost the ability to force “equal time” and having bungled the transition to high-definition television and other technical issues, would be on its way out. Instead, it is in the midst of power expansion.
Oh, Janet, what have you wrought?